Chattisgarh High Court
Mele Uraon vs State Of Chhattisgarh on 3 December, 2022
1
Cr.A. No. 1063 of 2013
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No. 1063 of 2013
Mele Uraon, son of Sohan Uraon, aged about 32 years, resident of
Village Jamgawa, P.S. Darima, District Sarguja, Chhattisgarh
---- Appellant
Versus
State of Chhattisgarh, Through Police Station Lakhanpur, District
Sarguja, Chhattisgarh
---- Respondent
For Appellant : Mr. Brajendra Singh, Advocate
For Respondent : Mr. Sudeep Verma, Deputy Govt. Advocate and
Mr. Soumya Rai, Panel Lawyer
Division Bench:
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Rakesh Mohan Pandey
Judgment on Board
(03.12.2022)
Sanjay K. Agrawal, J.
1. This criminal appeal preferred by the appellant/accused herein
under Section 374 (2) of the Cr.P.C. is directed against the
impugned judgment of conviction and order of sentence dated
26.08.2013 passed by the Court of learned Sessions Judge,
Sarguja, (Ambikapur) in Sessions Case No. 255/2011, whereby the
appellant has been convicted for offence under Section 302 of the
IPC and sentenced to undergo life imprisonment with fine of
Rs.1,000/- and, in default of payment of fine to further undergo
additional rigorous imprisonment for six months.
2. Case of the prosecution, in brief, is that on 19.03.2011 at about
05:00 pm in the courtyard of house of Vishnu Chowkidar, Village
Cr.A. No. 1063 of 2013
Singitana, Police Station Lakanpur, the appellant/accused assaulted
Siva Kujur by means of axe and caused death of Siva Kujur.
Further, case of the prosecution is that on 19.03.2011 at about
05:00 pm, appellant Mele Uraon was in the house of Somari (PW-
8), then the deceased visited there and on account of some dispute,
the appellant who was in drunken condition and in influence of
liquor, assaulted deceased Siva Kujur by axe on his neck, below his
ear by which the deceased suffered grievous injuries and died on
the spot instantaneously. After committing the offence, the appellant
tried to flee from there, but he was caught hold by Lachchhan Ram
(PW-7) and Rajesh Toppo (PW-10). The incident was witnessed by
Somari (PW-8) and thereby the appellant committed the said
offence pursuant to which the matter was reported to Police Station
Lakhanpur vide Ex.-P/10. Merg intimation was also registered vide
Ex.-P/11. Panchnama of dead body was prepared vide Ex.-P/13,
spot map was prepared vide Ex.-P/1 and nazrinaksha was prepared
vide Ex.-P/9. Dead body of deceased Siva Kujur was sent for
postmortem. Postmortem examination was conducted by Dr.
Premsukh Kerketta (PW-4), he gave his report vide Ex.-P/6A. As
per postmortem report, Doctor (PW-4) opined that cause of death of
the deceased was haemorrhagic shock due to cut of major
vessels of neck and death was homicidal in nature. During
investigation various articles were seized from the body of
deceased vide Ex.-P/4. Axe (tangia) was seized from the
possession of Lachchhan Ram (PW-7) vide Ex.-P/2. Axe alongwith
Cr.A. No. 1063 of 2013
seized articles were sent for FSL examination. As per FSL report
(Ex.-P/15), blood was found on the axe. Statements of the
witnesses were recorded under Section 161 of the Cr.P.C.
3. After completion of investigation, charge-sheet was filed against the
appellant for offence under Section 302 of the IPC before the
jurisdictional criminal court and the case which was committed to
the Court of Sessions Judge, Sarguja (Ambikapur) for hearing and
disposal in accordance with law.
4. The trial Court has framed charge under Section 302 of the IPC
against the appellant and proceeded on trial. The accused/appellant
abjured guilt, entered into trial.
5. The prosecution in order to bring home the offence examined as
many as 10 witnesses and exhibited 18 documents Exhibits P/1 to
P/18. Statement of the appellant was recorded under Section 313 of
CrPC in which he abjured guilt and pleaded innocence. Two
documents Exhibits D/1 & D/3 have been examined on behalf of the
defence, however, the appellant did not examine any witness.
6. The trial Court after completion of trial and after appreciating oral
and documentary evidence on record, convicted the appellant under
Section 302 of the IPC sentenced him to undergo imprisonment for
life as noticed in the paragraph No. 1 of this judgment against which
this appeal under Section 374 (2) of CrPC has been preferred by
him.
7. Learned counsel for the appellant submits that the prosecution has
Cr.A. No. 1063 of 2013
failed to prove its case beyond all reasonable doubts and the trial
Court has committed grave error and illegality by recording
conviction of the appellant under Section 302 of the IPC. He further
submits that in FSL report (Ex.-P/15) blood was found, but, it does
not connect the appellant in the crime in question. He also submits
that the trial Court without appreciating the evidence available on
record, convicted and sentenced the appellant, therefore, conviction
and sentences awarded by the trial Court to the appellant deserve
to be set aside. He would also submit that the case of the present
appellant falls within the purview of Exception 4 to Section 300 of
the IPC and the act of the appellant is culpable homicide not
amounting to murder and, therefore, it is a fit case where conviction
of the appellant can be converted/altered to an offence under
Section 304 Part-II of the IPC. Further, since the appellant is in jail
since 25.03.2011 i.e. more than 11 years, taking into consideration
the period he has already undergone, the appellant be released
from jail forthwith. Hence, the present appeal deserves to be partly
allowed.
8. On the other hand, learned counsel for the State supports the
impugned judgment of conviction and order of sentence and
submits that the prosecution has proved the offence beyond
reasonable doubt by leading evidence of clinching nature. The
learned trial Court has rightly convicted the appellant for offence
under Section 302 of the IPC. Exception 4 to Section 300 of the IPC
is not attracted in this case and it is not a case where conviction of
Cr.A. No. 1063 of 2013
the appellant under Section 302 of the IPC requires to be altered to
Section 304 Part-II of the IPC, thus, the present appeal deserves to
be dismissed.
9. We have heard learned counsel for the parties, considered their
rival submissions made herein-above and went through the records
with utmost circumspection.
10. The first and foremost question is whether the death of deceased
Siva Kujur was homicidal in nature and it has been answered by the
learned trial Court in affirmative by holding that death of the
deceased is homicidal in nature, which has been proved by Dr.
Premsukh Kerketta (PW-4) relying upon the postmortem report (Ex.-
P/6A). The said finding recorded by the trial Court holding the death
to be homicidal in nature is a finding of fact based on evidence
available on record and same is neither perverse nor contrary to
the record and we hereby affirm the said findings.
11. The next question is whether the trial Court has rightly recorded that
the appellant is the perpetrator/author of the crime and he has
murdered the deceased?
12. The trial Court has convicted the appellant herein on the basis of
the oral testimony of Somari (PW-8) who has been cited as
eyewitness and who has seen the appellant assaulting the
deceased by which the deceased suffered injury and succumbed to
death. Similarly, the trial Court also relied upon the statements of
Lachchhan Ram (PW-7) and Rajesh Toppo (PW-10), they have
seen the appellant fleeing away from the place of incident and after
commission of the offence and they have caught hold of appellant
Cr.A. No. 1063 of 2013
while he was fleeing from the spot and thereafter, the tangia was
seized by the police from the possession of Lachchhan Ram (PW-
7). It is also apparent on the record that at that time most of the
family members were under the influence of liquor and the appellant
was also under the influence of liquor. As such, it is clearly
established that on the date of offence, the appellant was under the
influence of liquor assaulted the deceased by axe, the said act has
been seen by Somari (PW-8) and thereafter, while the appellant
was absconding from the spot, he was seen by Lachchhan Ram
(PW-7) and Rajesh Toppo (PW-10) and they have on the spot
caught the appellant and handed over to the police, however, the
weapon of offence tangia was seized from the possession of
Lachchhan Ram (PW-7). Though in the FSL report (Ex.-P/15) the
tangia Article 'D' blood was found, but no human blood was found.
13. The Supreme Court in the matter of Balwan Singh v. State of
Chhattisgarh & Anr1 has clearly held that when the recovery of
bloodstained articles is proved beyond reasonable doubt by the
prosecution, and if the investigation was not found to be tainted,
then it may be sufficient if the prosecution shows that the blood
found on the articles is of human origin though, even the blood
group is not proved because of disintegration of blood. In that view
of the matter, since no human blood was found, the recovery is of
no help to the prosecution, but in view of direct evidence of
Lachchhan Ram (PW-7), Somari (PW-8) and Rajesh Toppo (PW-
10), it is clearly established that the appellant is the author of the
1 (2019) 7 SCC 781
Cr.A. No. 1063 of 2013
crime.
14. In order to consider the plea, it would appropriate to notice the
relevant decisions of the Supreme Court pointing out the relevant
factor to attract Exception 4 to Section 300 of IPC.
15. The Supreme Court in the matter of Sukhbir Singh vs. State of
Haryana2, has observed as under:-
"21. Keeping in view the facts and circumstances of the
case, we are of the opinion that in the absence of the
existence of common object Sukhbir Singh is proved to
have committed the offfence of culpable homicide
without premeditation in a sudden fight in the heat of
passion upon a sudden quarrel and did not act in a cruel
or unusual manner and his case is covered by Exception
4 to Section 300 IPC which is punishable under Section
304 (Part I) IPC. The finding of the courts below holding
the aforesaid appellant guilty of offence of murder
punishable under Section 302 IPC is set aside and he is
held guilty for the commission of offence of culpable
homicide not amounting to murder punishable under
Section 304 (Part I) IPC and sentenced to undergo
rigorous imprisonment for 10 years and to pay a fine of
Rs.5000. In default of payment of fine, he shall undergo
further rigorous imprisonment for one year."
16. The Supreme Court in the matter of Gurmukh Singh vs. State of
Haryana3, has laid down certain factors which are to be taken into
consideration before awarding appropriate sentence to the accused
with reference to Section 302 or Section 304 Part II of IPC, which
state as under:-
"23. These are some factors which are required to be
taken into consideration before awarding appropriate
sentence to the accused. These factors are only
illustrative in character and not exhaustive. Each case
2 (2002) 3 SCC 327
3 (2009) 15 SCC 635
Cr.A. No. 1063 of 2013
has to be seen fro its special perspective. The relevant
factors are as under :
(a) Motive or previous enmity;
(b) Whether the incident had taken place on the
spur of the moment;
(c) The intention/knowledge of the accused
while inflicting the blow of injury;
(d) Whether the death ensued instantaneously
or the victim died after several days;
(e) The gravity, dimension and nature of injury;
(f) The age and general health condition of the
accused;
(g) Whether the injury was caused without
premeditation in a sudden fight;
(h) The nature and size of weapon used for
inflicting the injury and the force with which the
blow was inflicted:
(i) The criminal background and adverse
history of the accused;
(j) Whether the injury inflicted was not sufficient
in the ordinary course of nature to cause death
but the death was because of shock;
(k) Number of other criminal cases pending
against the accused;
(l) Incident occurred within the family members
or close relations;
(m) The conduct and behaviour of the accused
after the incident.
Whether the accused had taken the injured/the
deceased to the hospital immediately to ensure that
he/she gets proper medical treatment?
These are some of the factors which can be taken into
consideration while granting an appropriate sentence to
the accused.
24. The list of circumstances enumerated above is only
illustrative and not exhaustive. In our considered view,
proper and appropriate sentence to the accused is the
bounded obligation and duty of the court. The endeavour
Cr.A. No. 1063 of 2013
of the court must be to ensure that the accused receives
appropriate sentence, in other words, sentence should
be according to the gravity of the offence. These are
some of the relevant factors which are required to be
kept in view while convicting and sentencing the
accused."
17. Likewise, in the matter of State vs. Sanjeev Nanda4, their Lordships
of the Supreme Court have held that once knowledge that it is likely
to cause death is established but without any intention to cause
death, then jail sentence may be for a term which may extend to 10
years or with fine or with both. It has further been held that to make
out an offence punishable under Section 304 Part II of the IPC, the
prosecution has to prove the death of the person in question and
such death was caused by the act of the accused and that he knew
that such act of his is likely to cause death.
18. Further, the Supreme Court in the matter of Arjun vs. State of
Chhattisgarh5, has elaborately dealt with the issue and observed in
paragraphs 20 and 21, which reads as under:-
"20. To invoke this Exception 4, the requirements that
are to be fulfilled have been laid down by this Court in
Surinder Kumar v. UT, Chandigarh [(1989) 2 SCC 217 :
1989 SCC (Cri) 348], it has been explained as under :
(SCC p. 220, para 7)
"7. To invoke this exception four requirements
must be satisfied, namely, (i) it was a sudden
fight; (ii) there was no premeditation; (iii) the act
was done in a heat of passion; and (iv) the
assailant had not taken any undue advantage or
acted in a cruel manner. The cause of the quarrel
4 (2012) 8 SCC 450
5 (2017) 3 SCC 247
Cr.A. No. 1063 of 2013
is not relevant nor its I relevant who offered the
provocation or started the assault. The number of
wounds caused during the occurrence is not a
decisive factor but what is important is that the
occurrence must have been sudden and
upremeditated and the offender must have acted
in a fit of anger. Of course, the offender must not
have taken any undue advantage or acted in a
cruel manner. Where, on a sudden quarrel, a
person in the heat of the moment picks up a
weapon which is handy and causes injuries, one
of which proves fatal, he would be entitled to the
benefit of this exception provided he has not
acted cruelty."
21. Further in Arumugam v. State [(2008) 15 SCC 590 :
(2009) 3 SCC (Cri) 1130], in support of the proposition of
law that under what circumstances Exception 4 to
Section 300 IPC can be invoked if death is caused, it has
been explained as under : (SCC p. 596, para 9)
"9. ....'18. The help of exception 4 can be invoked
if death is caused (a) without premeditation; (b) in
a sudden fight; (c) without the offender's having
taken undue advantage or acted in a cruel or
unusual manner; and (d) the fight must have
been with the person killed. To bring a case
within Exception 4 all the ingredients mentioned
in it must be found. It is to be noted that the
"fight" occurring in Exception 4 to Section 300
IPC is not defined in the Penal Code, 1860. It
takes two to make a fight. Heat of passion
requires that there must be no time for the
passions to cool down and in this case, the
parties had worked themselves into a fury on
account of the verbal altercation in the beginning.
A fight is a combat between two or more persons
whether with or without weapons. It is not
possible to enunciate any general rule as to what
shall be deemed to be a sudden quarrel. It is a
question of fact and whether a quarrel is sudden
or not must necessarily depend upon the proved
facts of each case. For the application of
Exception 4, it is not sufficient to show that there
was a sudden quarrel and there was no
premeditation. It must further be shown that the
offender has not taken undue advantage or acted
in cruel or unusual manner. The expression
""undue advantage" as used in the provisions
Cr.A. No. 1063 of 2013
means "unfair advantage".
19. In the matter of Arjun (supra), the Supreme Court has held that if
there is intent and knowledge, the same would be case of Section
304 Part-I of IPC and if it is only a case of knowledge and not the
intention to cause murder and bodily injury, then same would be a
case of Section 304 Part-II IPC.
20. Further, the Supreme Court in the matter of Rambir vs. State (NCT
of Delhi)6, has laid down four ingredients which should be tested for
bring a case within the purview of Exception 4 to Section 300 of
IPC, which reads as under:"
"16. A plain reading of Exception 4 to Section 300 IPC shows
that the following four ingredients are required;
(i) There must be a sudden fight;
(ii) There was no premeditation;
(iii) The act was committed in a heat of passion;
and
(iv) The offender had not taken any undue
advantage or acted in a cruel or unusual
manner."
21. Reverting to the facts of the present case in light of above principles
of law laid down by the Supreme Court, it is quite vivid that the
incident took place in the house of Somari (PW-8) and her son
Vishnu Chowkidar and the appellant was already staying with them
as he is relative of Somari (PW-8) and her son Vishnu Chowkidar
and the date of offence being the day of holi festival and most of the
persons were under the influence of liquor including that of
6 (2019) 6 SCC 122
Cr.A. No. 1063 of 2013
appellant herein. The appellant is said to have assaulted the
deceased by axe by which the deceased suffered two injures i.e. (i)
sharp cut wound over right side below ear of neck, size 4 inch x 3
inch and (ii) just side of mandible sharp cut wound, size 3 inch x 1
inch, as such, there was no premeditation on the part of the
appellant to cause death of deceased- Siva Kujur and only because
of a petty dispute, out of sudden anger and in heat of passion, the
appellant assaulted deceased- Siva Kujur and caused his death.
However, looking to the injuries sustained by deceased- Siva Kujur
as recorded by Dr. Premsukh Kerketta (PW-4), which have been
caused on his right side below ear of neck and just side of
mandible, the appellant must have had the knowledge that such
injuries inflicted by him on the body of the deceased would likely to
cause his death. As such, this is a case which would fall within the
purview of Exception 4 to Section 300 of the IPC, as the act of the
appellant herein completely satisfies the four necessary ingredients
of Exception 4 to Section 300 of the IPC i.e. (i) there must be a
sudden fight; (ii) there was no premeditation; (iii) the act was
committed in a heat of passion and (iv) the appellant had not taken
any undue advantage or acted in a cruel or unusual manner and,
therefore, conviction of the appellant under Section 302 of the IPC
can be altered/converted to Section 304 Part-II of IPC.
22. In view of the aforesaid discussion, conviction of the appellant for
offence punishable under Section 302 of the IPC as well as the
sentence of life imprisonment awarded to him by the learned trial
Cr.A. No. 1063 of 2013
Court is hereby set aside. Considering that there was no
premeditation on the part of the appellant to cause death of the
deceased but the injuries caused by him were sufficient in the
ordinary course of nature to cause death, the appellant is convicted
for offence punishable under Section 304 Part-II of IPC. Since the
appellant is in jail since 25.03.2011 i.e. more than 11 years, taking
into consideration the period he has already undergone, we award
him to the sentence already undergone by him, however, the fine
sentence imposed by the learned trial Court shall remain intact.
Accordingly, the appellant be released from jail forthwith, if not
required in any other case.
23. This criminal appeal is partly allowed to the extent indicated herein-
above.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge
vatti
